Project 90 Ltd v Oswald & Anor [2005] UKEAT 0388_05_1111 (11 November 2005)

Project 90 Ltd v Oswald & Anor [2005] UKEAT 0388_05_1111 (11 November 2005)

The Tribunal failed to apply the correct legal test from Cheesman to determine whether there was a relevant transfer under TUPE; the case is remitted for proper application of these factors. Liability for unfair dismissal depends on whether a relevant transfer occurred.

Citation
[2005] UKEAT 0388_05_1111
Parties
Appellant: Project 90 Ltd; Claimant/first Respondent: Miss Oswald; Second Respondent: Mr Jeal
Jurisdiction
United Kingdom
Judgment Date
11 November 2005
Procedural Posture
Employment Appeal / Appeal With Controlled Remission to Employment Tribunal
Outcome
Appeal allowed; controlled remission to Employment Tribunal for further findings on relevant transfer; finding of unfair dismissal and compensation award remain pending further determination.
Legal Topics
Transfer of Undertakings (protection of Employment) Regulations 1981 (tupe), Unfair Dismissal, Consultation Requirements, Jurisdiction of Employment Tribunal
Employment Law Transfer of Undertakings (protection of Employment) Regulations 1981 (tupe) Unfair Dismissal Consultation Requirements Jurisdiction of Employment Tribunal

Case Brief

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Parties

Project 90 Ltd

Appellant

Miss Oswald

Claimant/first Respondent

Mr Jeal

Second Respondent

Procedural Posture

Employment Appeal / Appeal With Controlled Remission to Employment Tribunal

Legal Issues

  1. 1 Whether there was a relevant transfer under TUPE 1981
  2. 2 Liability for unfair dismissal between transferor and transferee
  3. 3 Jurisdiction for breach of Regulation 10 and 11 (consultation) at the instance of an employee

Ratio Decidendi

The Tribunal failed to apply the correct legal test from Cheesman to determine whether there was a relevant transfer under TUPE; the case is remitted for proper application of these factors. Liability for unfair dismissal depends on whether a relevant transfer occurred.

Court Disposition

Appeal allowed; controlled remission to Employment Tribunal for further findings on relevant transfer; finding of unfair dismissal and compensation award remain pending further determination.

Orders

  • Remit to Employment Tribunal to apply Cheesman factors and determine if a relevant transfer occurred on 11 October 2004.
  • Maintain finding of unfair dismissal and compensation award pending Tribunal's further determination.